The Senate Rule Invoked to Silence Elizabeth Warren

He was trying to prevent her from reading into the Congressional Record two letters, one by Senator Edward M. Kennedy and one by Coretta Scott King, concerning the nomination of Jeff Sessions (R-AL on Tuesday) to a federal judgeship in 1986. Warren referenced the letters in connection with Trump's nomination of Sessions to be Attorney General. Sessions was confirmed by the Republican members of the Senate the next day, after four Democratic male senators were able to read from those letters. (I refrain from discussing who has balls, what takes balls, and what shows ball-lessness.)

Rule 19, paragraph 2, was invoked to tell Warren (in the lingo of McConnell's boss, tweetybird the absurd) to "Shut Up." Paragraph 4 provided the authority for then telling her to leave the room.

I found Paragraph 2 the more noteworthy. It says

2. No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.

Really? Never? I thought about that and looked up the right of Senators to do something about fellow members who acted unethically or even criminally. And then wrote a comment to the Washington Post article:

The text of Rule 19 (2) by its terms would make it impossible for the Senate to excercise its Constitutional right to expel a member (Art. I, Sec. 5) or its traditional right to censure. That's because the rule says that "No Senator in debate shall, directly or indirectly ... impute to another Senator ... conduct or motive unworthy or unbecoming a Senator." But the Senate has held explusion and censure proceedings in the 20th century. If nobody can impute unworthy conduct to a Senator, then how can the reasons for expulsion or censure be debated? Time to repeal this Rule. It is unconstitutional.

"Impute," which means "ascribe," can sometimes have the connotation of "falsely or unfairly." If deterring unfair imputation is the purpose of the rule, then we must ask: Was Warren being unfair? Whether or not Sessions was as bad as Kennedy and King wrote in their letters, the letters were written. And became part of the public record although they were kept out of the Congressional Record back in 1986. The letters tell us what "people were saying," and not just saying but writing, quite formally, to the Senate, and not just any people but a member of the Senate and the widow of the most famous civil rights leader of our time, a man who died from an assassin's bullet. The result of what these people were writing was that Sessions was not confirmed by the Senate. He was rejected. It was neither false nor unfair to discuss that rejection nor to cite information that was before the Senate in 1986.
Perhaps Rule 19 can be saved by adding "with reckless disregard for the truth," the standard for defamation of a public figure. That would make it impossible to stop things like Warren's reading of those two letters. She did not show any disregard for the truth. On the contrary. McConnell's action, however, showed a disrespect for the truth. That's a disease that seems to be going among politicians of the less popular party. We need a cure.

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About Me

ROBERTA J MORRISAB Brown University JD Harvard Law SchoolPhD Columbia University. Member of the Patent Bar and of the Bars of New York and Michigan.
See myunpublishedworks.com/bloglist.htm for a recent list of posts on all my blogs.